PRAVEEN DALPATRAI DESAI Vs. GANGAVISHINDAS RIJHARAM BAJAJ

JUDGEMENT

(1.) THIS revision application is filed challenging the order of the Additional Sessions Judge, Greater Bombay, dated March 15, 1977 setting aside the order of the learned Metropolitan Magistrate, 23rd Court, Esplanade, Bombay, dated August 27, 1975, by which the learned Magistrate had passed an order of discharge in favour of the accused -revision petitioner under Section 245(1) of the Code of Criminal Procedure, 1973.

(2.) THE facts giving rise to this revision application are briefly these: The accused -revision petitioner Praveen Desai is a Managing Director of what is known as 'Advent Corporation Pvt. Ltd.' In that capacity he had constructed a building called 'Advent' at 12 -A, Foreshore Road, Bombay. In 1962, the accused wanted to construct another building known as 'Divyaprabha' on a vacant portion of the plot on which the Advent building was standing. The complainant Bajaj intended to purchase one of the flats in the proposed building. An agreement to that effect was entered into between the complainant and the accused in March 1963 and it was agreed that flat No. 41 on the 4th floor admeasuring 1250 sq. ft. would be sold by the accused to the complainant. The complainant paid Rs. 2,500 to the accused on that occasion. In 1964, Bajaj filed suit No. 5108 of 1964 against Desai, the accused, for an injunction and certain other reliefs.

(3.) THEREAFTER it appears that after having fulfilled the undertaking given by him to the City Civil Court and the Supreme Court, the accused applied to the Court for being purged of that contempt'. The order which was passed in those proceedings as appears from exh. C, dated October 21, 1972 shows that a consent order was passed. That order reads as under: Misc. Civil Application No. 96/69. Coram: Tulzapurkar and Malvankar JJ. The parties to the dispute, viz., the petitioner (original plaintiff) and respondents (original defendants)having entered into a compromise reduced to writing, duly signed by both the parties and advocate for the petitioner and counsel for the respondents and the terms of the Order agreed to having been taken on record of the case are set out below: 1. The 1st respondents have already delivered possession of the Flat No. 62 on the 6th floor, North side of the building known as 'Divyaprabha' to the petitioner on 12th clay of February 1971. 2. The 1st respondents have agreed to pay to the petitioner the sum of Rs. 22,500 (Rupees twenty two thousand and five hundred only) for the purpose of enabling the petitioner to make the said flat No. 62 habitable and put it in proper and fit condition and for having the internal walls plastered for laying of and polishing of mosaic tiles etc. and for carrying out internal electrical wiring and other fittings such as sanitary fittings plumbing etc. and for providing and fitting windows and internal doors and for carrying out other necessary works remaining to be done inside the said flat No. 62. 4. The petitioner shall not have any claim against the respondents for the purpose of making the said flat No. 62 habitable and in proper and fit condition and for providing internal walls plastered for laying and polishing of mosaic tiles etc. and for carrying out electrical wiring and other fittings sanitary fittings, plumbing etc. inside the said flat and for providing and fitting windows and internal doors and for carrying out other necessary works remaining to be done inside the said flat No. 62 and the respondents are discharged from their obligations and duties in that behalf.